Wednesday, January 5, 2011

Equal protection under the law: for men only

The 14th amendment provides for equal protection under the law. It is a fundamental component of our constitutional republic that prevents simple majoritarian abuse of any group.

Here's what it says:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

But according to Supreme Court Justice Antonin Scalia, "citizens" and "persons" do not include women. Quite remarkably finds that the 14th amendment, which doesn't mention race, is about race and only protects on the basis of race.
Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that….Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about.
Writing at the blog Hunter of Justice, lawyer Nan Hunter responds,
But let's get real - the bottom line import of this approach to constitutional interpretation (shared by many in addition to Justice Scalia) is that it eviscerates constitutional protection for marginalized and unpopular minorities, allowing (often temporary) majorities to scapegoat them for evils real and imagined and to impose legal disabilities unrelated to any legitimate, much less proportional, public goal.

Under Scalia's originalism, the only recourse for ending even the most oppressive law would be for a legislative reversal, ie, for a new majority rule….the point of a constitution as a charter of government is that some principles are structural, not merely that we the people have agreed that a few mostly 18th and 19-century practices are now off the table….

Who benefits from this mode of constitutional interpretation? Well, to ask the question is truly to answer it, wouldn't you say?
And from the HuffPo:
Marcia Greenberger, founder and co-president of the National Women's Law Center, called the justice's comments "shocking" and said he was essentially saying that if the government sanctions discrimination against women, the judiciary offers no recourse.

"In these comments, Justice Scalia says if Congress wants to protect laws that prohibit sex discrimination, that's up to them," she said. "But what if they want to pass laws that discriminate? Then he says that there's nothing the court will do to protect women from government-sanctioned discrimination against them. And that's a pretty shocking position to take in 2011. It's especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection."
What this also does is telegraph how Scalia would view Prop8, should the case come to the SCOTUS. A majority of voters in CA decided to marginalize an unpopular minority. That's perfectly fine with Scalia. It enshrines a remarkable power in the mob. As discussed by Robert Cruickshank, whom I also quoted in the previous post:
One reason our state government fails is that we’ve essentially set up a fourth branch of government – the people – that can negate anything done by the other three branches, but without any real checks or balances on the powers of that fourth branch.

In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected. The right clearly wants to undo that convention, and give the people the power to trump the Constitution by mob rule.
I think Scalia's is quite a dangerous viewpoint that undermines the integrity of our republic.


Grandmère Mimi said...

Who benefits from this mode of constitutional interpretation? Well, to ask the question is truly to answer it, wouldn't you say?

The money quote again.

Scalia is truly on the fringe, and he holds his position for life, or until he chooses to retire, which will not be any time soon.

Hermano David | Brother Dah • veed said...

he holds his position for life, or until he chooses to retire, which will not be any time soon.

There are ways to speed that up. Sometimes the one must be sacrificed for the many.

Grandmère Mimi said...

Will no one rid us of this meddlesome justice?

And no! I'm not advocating violence!

JCF said...

"Visualize Impeachment"

it's margaret said...

I'm visualizing....

MarkBrunson said...

It doesn't have to be violent.

Anonymous said...

The fundamentalists advocate praying for the death of liberal justices. Perhaps we should return the favour?

Paul Powers said...

That's not the complete interview. It's excerpts from the interview. A link to the video of the interview (which lasts over an hour) is at the bottom of the page. One comment that was edited out was that he was less willing than Justice Thomas to ignore stare decisis (basically respect for precedents set by earlier court decisions) if he believed the earlier decision was incorrect. So just because he believes the Court erred in applying the equal protection clause to gender-based classifications doesn't mean he would vote to overturn that precedent in a later case (I haven't done any research on his voting record on equal protection cases).

He is correct in one sense: in drafting the equal protection clause, its authors almost certainly were thinking primarily about preventing the states from discriminating against the recently freed African-American slaves. Considering that it wasn't until about 40 years later that women were given the right to vote, it's a safe bet that the senators, representatives and state legislators weren't thinking about gender-based discrimination when the adopted the amendment.

But in my opinion, their original intent doesn't matter as much as the original meaning of the text. The framers of the 14th amendment were presumably able to express themselves in English, and if they had wanted to restrict the equal protection clause to race, they could have specified that limitation in the text of the amendment itself.

I also agree that if the Prop 8 ruling ever gets to the Supreme Court, he's a guaranteed "no."

JCF said...

Quit trolling us, Anonymous. I pray for Scalia's conversion & repentance (and know I could stand to improve in those areas, also).

MarkBrunson said...

He may not be trolling, JCF.

After all, I pray for Scalia's conversion, as well . . . to what is the difference.